Su on Wenger's Religious Freedom

Wenger’s Contested History is the first to examine holistically the history of religious freedom within the United States largely outside the confines of the history generated by the Religion Clauses of the U.S. Constitution. Among others, it serves to bridge existing scholarly conversations on the critique of secularism, religious freedom in U.S. foreign policy, and religion in U.S. history. Those familiar with the works of Talal Asad, Saba Mahmood and Winnifred Fallers Sullivan on the disciplinary inclinations of religious freedom would find much fodder in this book for support.

In many ways, it lays out a rich new canvas with which to look at the questions raised in those aforementioned conversations. For instance, in what ways did religious freedom talk emancipate or subjugate racialized minorities? What are inherent limitations of a religious freedom frame for the achievement of wide-ranging goals that go beyond religion? But it is also an important contribution that it raises these questions within a primarily settler-colonial context. To what extent do those questions endure in our present?

The United States is an exceptionally good case study given the prominence and cultural power of religious freedom in its social and political imaginary, one that is largely absent in any other Western nation. If I have to single out one chapter, the book provides a much-needed historical context to the continuing struggles of Native Americans to render their claims legible to the American state, one that is also shared by indigenous communities elsewhere, certainly in Canada. Alongside Native Americans, the book also looks at the case of Jews, African-Americans and the colonized Filipinos at the height of America’s fin de siècle brush with formal empire. What the overall narrative reveals is that American religious freedom discourse is indeed malleable – but with limits. Like a mirage in the desert, religious freedom offered a promise of salvation to these communities, only for them to realize that it was only possible insofar as the underlying ‘civilizational assemblage,’ as Wenger terms it, would allow. For example, latching on to the emancipatory language of religion and religious freedom allowed American Jews and Catholics to claim the protective mantle of whiteness and with that, equal political status. Native Americans, and most notably, African-Americans, however, could not do the same.

In a related book, Spirit of the Law: Religious Voices and the Constitution in Modern America, historian and legal scholar Sarah Barringer Gordon offers a companion narrative of how generations of religious communities took the promise of the Religion Clause as a weapon in their fight against oppression. That book ends on a somewhat more hopeful note, that is, the turn to constitutional law by religious believers is responsible for the toleration that exists in American society by creating unlikely partnerships. Reading Wenger in tandem shows a less optimistic outlook. Whether the U.S. federal government was banning peyote use by Native Americans outright in the 1920s, or the U.S. Supreme Court denying unemployment benefits to a person fired for violating a state ban on the use of peyote in 1990, religious freedom – whether dressed in full-on legal language or as everyday language in public discourse – just might not be enough.

To be sure, religious freedom was not devoid of any power even for Native Americans, colonized Filipinos or African-Americans. For example, Malcolm X’s campaign for religious recognition on First Amendment grounds within the harsh confines of a prison – both a claim for legitimacy and a defensive strategy, in Wenger’s words – helped in catalyzing black identity but also produced results that still continues to benefit other communities of faith. But it also reinforced the public-private binary of secularism. The Filipino Muslims or Moros, for example, invoked religious freedom as they negotiated their relations with the United States as a new colonial power but in the process, their political makeup was changed as well as the sultan’s erstwhile overarching authority became narrowed down to its religious dimension.

I find myself in agreement with much of this book, not only with its motivations but also with its argument and takeaways. Like Wenger’s conclusion, I too also do not necessarily see religious freedom as inherently imperial. I sought to emphasize this in my own book, Exporting Freedom: Religious Liberty and American Power, which portrays the promotion of religious freedom abroad by the U.S. government as hand-in-hand with the rise of American global power. I also share the impulse to highlight the less savory aspects of history of religious freedom in order to counter the celebratory accounts – which is still prevalent in many quarters today, including the legal academy - that justify and facilitate its use and abuse.

One important thing worth mentioning however is that Contested History portrays religious freedom as a distinctive American ideal that notwithstanding its limitations have always offered something transcendental and substantive. However, I am not so certain anymore about how much of its message still holds in the contemporary period. According to a Pew Research report, the number of unaffiliated “religious nones” in America have sharply risen in number in recent years. While the population remains overwhelmingly Christian, it remains to be seen how many of these Christians are actually practicing. The malleability of religious freedom certainly continues to have contemporary resonance. How else to explain the religious liberty order of President Donald Trump which, among others, offers robust protections for religious employers, on the one hand, and the so-called Muslim travel ban, on the other? Despite the fact that we no longer identify religious liberty with Christianity, as we once did for a significant part of American history, perhaps some of that history remains in its current incarnation. Like the trajectory I set forth in my own work, we raise similar questions today as the ones raised in the Wenger’s account but with no longer the same underlying assumptions.

Today, religion – and by extension –religious freedom, it seems, is no longer special. What I mean by that is the view that religion is considered no better than any other deeply held moral commitment and therefore does not and should not warrant any special treatment under the law. While that question has been the subject of legal academic debate even before the controversial Hobby Lobby decision of the U.S. Supreme Court or even before Trump became President, it is not an issue merely entertained within the cloistered halls of the legal academy. Consider the popular reception of the question of accommodation of religion. It used to be the case that exemptions from legally imposed burdens on religious belief and practice were seen as a natural response to the tension between law and religion. There were exceptions of course – the case of 19th century Mormon polygamy is the most glaring one – but by and large, the question has always been which branch of government gets to accommodate religious objectors and to what extent, as opposed to the more fundamental question of whether accommodation should be granted at all. Corollary to the shift in religious demographics is the shift in popular and academic understanding of what religious freedom is supposed to achieve. The same bipartisan consensus that fueled the politically diverse coalition behind the Religious Freedom Restoration Act a mere twenty years ago has now crumbled to ashes. That it is now commonplace to ask “is religion special?” shows a markedly different milieu to that surrounding the stories found in Wenger’s narrative. It is rather telling that American Christians currently feel, rightly or wrongly, that they are on the defensive, as the Trump religious liberty executive order seems to imply. Certainly, religious freedom remains important, but its distinctive cachet that is on full display in the case studies that are subject of Wenger’s account is most intelligible only to a populace that somehow believes that religion remains a sacred lens with which to view all of existence. That it is no longer true for an increasing number of Americans seems to portend an uphill struggle for religious freedom as well.

Part of the reason is that we have started to find other sources of transcendence. The rise of equality as the dominant constitutional ideal in the postwar era partly made possible the ongoing culture war that pits, for instance, marriage equality against religious freedom. And religious freedom, with all that it entails, including accommodations and/or exemptions, started to be perceived as anathema to this ideal even before Hobby Lobby and its ilk of cases came into popular view in the past five years. The implication of this demoted status for religious freedom is disturbing. It loses its moral appeal as a singular avenue to vindicate the claims of various marginalized communities.

In other words, perhaps religious freedom today does not have the same power as it once did. Could present-day American Muslims resort to religious freedom talk as the African-Americans or the American Jews and Catholics depicted in Contested History did? I suspect they are now probably better off appealing to the ideal of equality in general or freedom of speech, perhaps, as much more effective frames that could resonate with the their fellow citizens. But if I am correct and that is indeed the case, that is a loss worth lamenting. Religious freedom was important because religion offered something transcendental even though it may not always have been the best means to bring about a certain result; it implied community and solidarity. Its alternatives I fear might offer something that will always ever fall short of that.

This brings me back to the continuing value of a book such as Contested History given this bleak diagnosis of the state of religious freedom in the contemporary United States. These less-celebrated stories, with all its small triumphs and large pitfalls, should be a timely reminder that religious freedom has benefitted not only Christians but also other religious communities in various ways throughout history. These victories might not be as all-encompassing as one would have wanted them to be at those particular moments in time but notions of religious freedom have changed over the years as well. Its distinctive emancipatory potential is something that should be preserved and cherished not only by the remaining religious believers but the non-believers as well. The Foucauldian critics of religion and religious freedom such as Sullivan and Mahmood may be right on highlighting the managerial aspects of religious freedom, governing as it is freeing, and excluding inasmuch as it likewise includes. I do not have any problems with having an honest reckoning with the paradoxes of religious freedom but inasmuch as Contested History shows the mirage sometimes offered by this ideal, it also shows that it can sometimes be a real oasis in a desert of injustice. Communities which would not otherwise have access to a seat on the table of American politics were able to articulate their claims and even, as a mode of resistance, using this frame. Religious freedom, for all its ambivalence and racialized limitations, deserves another chance.

Anna Su is Assistant Professor of Law at the University of Toronto Faculty of Law